Does a Florida probate court have the discretion to ignore the statutory preference for appointment of personal representative of a Florida estate? No, according to a recent Pinellas County probate case.
Pamela died in 2008. She was unmarried at the time. Her two minor children were the sole heirs of her estate under Florida intestate law. Acting through their guardians, the two minor children selected Stalley to serve as personal representative of Pamela’s estate. But the Pinellas County probate court ignored the children’s selection and appointed Pamela’s father, Williford, instead.
Florida law provides a specific order of preference for who can serve as personal representative of the estate of someone who dies without a will. Section 733.301(1), Florida Statutes (2008), provides:
(1) In granting letters of administration, the following order of preference shall be observed …
(b) In intestate estates:
1. The surviving spouse.
2. The person selected by a majority in interest of the heirs.
3. The heir nearest in degree. If more than one applies, the court may select the one best qualified.
This means that the spouse has the right to serve if he or she chooses; if not, the person selected by a majority of the heirs can serve; and if none, then the heir that is the closest relative can serve.
In this case, since Stalley was selected by both of the heirs of Pamela’s estate, the court did not have the discretion to appoint anyone else unless Stalley was disqualified. And there was no evidence that Stalley was unfit to serve. In the absence of such evidence, the Pinellas County court simply didn’t have the discretion to appoint anyone other than Stalley to serve as personal representative.
Practice Note: While we can’t be sure from the opinion, it is likely that Williford felt that Stalley was unfit to serve. But the record didn’t include any evidence on this point. When attempting to deviate from the statutory preference for personal representative, Florida probate attorneys should be sure that the record reflects any evidence that would indicate that the statutorily preferred personal representative is unfit to serve.
Stalley v. Williford, 35 Fla. L. Weekly D2697b (Fla. 2d DCA Dec. 8, 2010)
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